Partisan high court has no taste for checks, balances
Our constitutional system of “checks and balances” only works if those in a position to operate the levers of checking and balancing do their job. It is clear that a Republican Congress and Republican appointees to the Supreme Court have no taste for such work. For the moment, President Trump is mostly unchecked and unbalanced.
It is equally clear — on Trump’s travel ban but also on issues related to voting rights, labor rights and gerrymandering — that the Republican Five on the nation’s highest court have operated as agents of their party’s interests.
And now things stand to get even worse because of Justice Anthony Kennedy’s retirement. He was, at least sometimes, a moderating force. His replacement by another conservative hardliner in the mold of Justice Neil Gorsuch would give right-wing interpretations of the law free rein.
This Court’s direction was troubling enough with Kennedy there. On the travel ban, for example, the majority that included Kennedy discounted the obvious (practically every word Trump has said about Muslims) to make a decision based on a rather absolutist view of presidential power, about which they were skeptical when Obama was president.
And on Wednesday, in what might be seen as a companion to the Citizens United decision that enhanced the influence of corporations on our political life, the majority voted to undercut organized labor’s ability to fight back. In Janus v. American Federation of State, County and Municipal Employees, it ended the practice of public employee unions automatically collecting fees from non-union members on whose behalf they negotiate contracts, tossing aside 41 years of settled law and crippling the broader labor movement.
As Justice Elena Kagan wrote in dissent: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law — and in its economic life — for over 40 years.” The majority overruled precedent, she wrote, for “no exceptional or special reason” but simply “because it wanted to.”
You might ask: What’s wrong with all these 5-to-4 partisan decisions? Well, there is the matter of the Republican majority in the Senate not even permitting a vote on President Obama’s nomination of Merrick Garland to the court, allowing Trump to fill the seat with a Republican. Every 5-to-4 conservative decision is the fruit of a poisonous tree of unbridled partisanship.
A profound mistrust of the court will only be aggravated by the contrast between its approach to the travel ban and its earlier 7-to-2 ruling in favor of a baker who did not want to sell a wedding cake to a gay couple.
The cake decision uses statements by a Colorado regulator critical of religion to decry “religious hostility on the part of the State itself.” The five-justice majority then turns around in the travel-ban case, as Sotomayor noted, and “completely sets aside the President’s charged statements about Muslims as irrelevant.” In the first, involving Christians, the court went out of its way to protect religious liberty. In the second, involving Muslims, it went out of its way to insist that religious liberty concerns did not apply.
All the recent talk about civility should not stop opponents of a right-wing court from doing everything in their power to keep the judiciary from being packed with ideologues who behave as partisans.
He writes for the Washington Post.
If Trump’s supporters are truly “a basket of deplorables ... racist, sexist, homophobic, xenophobic, Islamophobic” and “irredeemable,” as Hillary Clinton described them to an LGBT crowd, is not shunning and shaming the proper way to deal with them? So a growing slice of the American left has come to believe.
Last Friday, gay waiters at the Red Hen in Lexington, Virginia, appalled that White House Press Secretary Sarah Huckabee Sanders was being served, had the chef call the owner. All decided to ask Sanders’ party to leave.
Congresswoman Maxine Waters was ecstatic, yelling to a crowd, “God is on our side!”
He writes for Creators Syndicate.